B-175310, APR 5, 1972

B-175310, APR 5, 1972

BID PROTEST - PROPRIETY OF EVALUATION FACTOR - EXCLUSIVE STATUTORY AUTHORITY CONCERNING THE PROTEST OF GLAZER STEEL CORPORATION AGAINST THE ADDITION OF TWELVE PERCENT IN EVALUATING ITS BID UNDER AN IFB ISSUED BY THE TENNESSEE VALLEY AUTHORITY (TVA), CHATTANOOGA, TENN. THE PURCHASING AND CONTRACTING AUTHORITY OF THE TVA, AS SET FORTH IN 16 U.S.C. 381HB), IS EXCLUSIVE AND NOT SUBJECT TO ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS. ACCORDINGLY, GAO CONSIDERATION OF THE MATTER WOULD SERVE NO USEFUL PURPOSE.

TO COVINGTON & BURLING:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 24, 1972, WITH ENCLOSURES, PROTESTING ON BEHALF OF GLAZER STEEL CORPORATION, NEW ORLEANS, LOUISIANA, THE ADDITION OF 12 PERCENT IN EVALUATING ITS BID UNDER INVITATION FOR BIDS 57-65041, ISSUED BY THE TENNESSEE VALLEY AUTHORITY, DIVISION OF PURCHASING, CHATTANOOGA, TENNESSEE, ON JANUARY 26, 1972.

THE SUBJECT INVITATION PROVIDED FOR AN ADDITIONAL EVALUATION FACTOR AFFECTING "FOREIGN BIDS" AS FOLLOWS:

"TWELVE PERCENT INSTEAD OF SIX PERCENT OF THE TOTAL BID PRICE (INCLUDING OTHER EVALUATION FACTORS THAT HAVE BEEN ADDED THERETO) WHEN THE LOWEST ACCEPTABLE BIDDER OFFERING DOMESTIC MATERIALS WILL PRODUCE A SUBSTANTIAL PROPORTION OF ALL SUCH MATERIALS IN AREAS OF PERSISTENT OR SUBSTANTIAL UNEMPLOYMENT, IS A SMALL BUSINESS CONCERN, OR IS CERTIFIED FOR PREFERENCE IN PROCUREMENT OF FEDERAL CONTRACTS UNDER 29 CFR 8.7(B)."

THE BID OPENING TOOK PLACE ON FEBRUARY 9, 1972, AND TO DATE, NO CONTRACT HAS BEEN AWARDED. YOU CONTEND THAT IF THE CONTRACTING OFFICER, DULY NOTIFIED OF THE SUBJECT PROTEST, DETERMINES THAT A 12 PERCENT ADD-ON SHOULD BE APPLIED IN EVALUATING GLAZER STEEL CORPORATION'S BID, ON THE GROUND THAT OTHER BIDDERS QUALIFY AS "LABOR SURPLUS AREA CONCERNS," SUCH A DECISION WOULD BE CONTRARY TO THE CLEAR LANGUAGE OF THE SUBJECT INVITATION AND COMPTROLLER GENERAL DECISION B 158002, FEBRUARY 28, 1966.

THE TENNESSEE VALLEY AUTHORITY IS A GOVERNMENT CORPORATION WHOSE PURCHASING AND CONTRACTING AUTHORITY IS SET FORTH IN SUBSECTION (B) OF SECTION 831H, TITLE 16, U.S.C. WHICH PROVIDES IN PART AS FOLLOWS:

" *** PROVIDED, THAT, SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER, THE CORPORATION IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER INTO SUCH CONTRACTS, AGREEMENTS AND ARRANGEMENTS, UPON SUCH TERMS AND CONDITIONS AND IN SUCH MANNER AS IT MAY DEEM NECESSARY, INCLUDING THE FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE CORPORATION; AND, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS, THE GENERAL ACCOUNTING OFFICE *** SHALL NOT DISALLOW CREDIT FOR, NOR WITHHOLD FUNDS BECAUSE OF, ANY EXPENDITURE WHICH THE BOARD SHALL DETERMINE TO HAVE BEEN NECESSARY TO CARRY OUT THE PROVISIONS OF THIS CHAPTER."

THE TENNESSEE VALLEY AUTHORITY HAS STATUTORY AUTHORITY TO ENTER INTO CONTRACTS IN THE MANNER SELECTED BY THAT CORPORATION AND THIS OFFICE EXPRESSLY LACKS AUTHORITY TO OBJECT TO SUCH AWARDS. IT WOULD THEREFORE APPEAR THAT TVA IS NOT BOUND TO FOLLOW PRIOR DECISIONS OF THIS OFFICE, AND THAT WE CANNOT TAKE ANY REMEDIAL ACTION WITH RESPECT TO ANY ADDITIONAL FACTORS THE TENNESSEE VALLEY AUTHORITY HAS CHOSEN TO IMPLEMENT FOR EVALUATING FOREIGN BIDS IN CONTEMPLATION OF AN AWARD OF A CONTRACT, EVEN IF WE SHOULD FIND IT IMPROPER UNDER THE RULES GENERALLY APPLICABLE TO GOVERNMENT PROCUREMENTS. WE MUST THEREFORE CONCLUDE THAT NO USEFUL PURPOSE WOULD BE SERVED BY OUR CONSIDERATION OF THE MATTER, EXCEPT UPON THE REQUEST OF THE TENNESSEE VALLEY AUTHORITY.